Citation NR: 9614914
Decision Date: 05/29/96 Archive Date: 06/11/96
DOCKET NO. 94-03 200 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to an increased (compensable) evaluation for
a right forehead scar, currently evaluated as noncompensable.
2. Entitlement to an increased rating for the residuals of a
right hand and forearm laceration, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Howard A. Dean, Associate Counsel
INTRODUCTION
The veteran had active service from April 1972 to April 1974.
The issue of entitlement to an increased evaluation for the
residuals of a right hand and forearm laceration will be
discussed in the REMAND section of this decision.
The veteran has also indicated that he is seeking service
connection for headaches and “eye fluttering.” These claims
have not been adjudicated by the regional office. These
claims are not inextricably intertwined with the issues
currently on appeal and are referred to the regional office
for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his right forehead
scar is disfiguring, and painful when wearing protective
welding head gear.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1995), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran's claim for an increased (compensable) evaluation for
the residuals of a right forehead scar.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim for a compensable
evaluation for a forehead scar has been obtained by the
regional office (RO).
2. The veteran's right forehead scar is not shown to be mor
than slightly disfiguring, poorly nourished with repeated
ulceration, tender and painful on objective demonstration, or
productive of any interference with the function of the part
affected.
CONCLUSION OF LAW
The criteria for a compensable evaluation for a right
forehead scar have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.31, 4.118, Diagnostic
Codes 7800, 7803, 7804, 7805 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
Service medical records dated in June 1973 indicate that the
veteran was treated for a cut on the right side of his
forehead. The veteran refused sutures, and a bandage was
applied. No associated complications were reported.
During a post-service Department of Veterans Affairs (VA)
examination dated in June 1992, the veteran had no complaints
of pain associated with his right forehead scar, and no scar
was noted by the examiner.
In November 1992 the veteran filed a claim for the residuals
of a laceration over the right eye with face trauma. He
claimed that “as a welder, the protective helmet causes a lot
of pain.” In a rating decision dated in December 1992, the
RO granted service connection for a right forehead laceration
and assigned a noncompensable evaluation under Diagnostic
Code 7800, covering disfiguring scars of the face. In a
statement dated in February 1993, the veteran reiterated that
he experiences pain at the site of the right forehead
laceration when wearing a welding helmet. He argued, that
because of this pain he should be rated under Diagnostic Code
7804.
At a hearing conducted in June 1993, the veteran stated that
his right forehead scar was tender to pressure and that his
eye twitched, but that he did not know if this is related to
the laceration. The veteran reported that he had no problems
with his right forehead scar except that when his welding
helmet was pulled down in a secure position, the scar became
tender and he developed a headache and some fluttering of the
right eye.
On VA examination in July 1993, the veteran indicated that he
had no problems with the right forehead scar unless he was
wearing his welding helmet, at which times the scar became
tender, he got headaches, and his right eye fluttered. On
objective examination the scar measured approximately two
inches in length and was noted to be oriented across the
forehead “rather obliquely.” The examiner indicated that the
scar was neither keloid or disfiguring, could “hardly [be]
seen,” and was “smooth.” The scar did not adhere to
underlying bone. The examiner further noted that the veteran
was able to wrinkle his forehead “without any difficulty” and
that the scar did not interfere with the veteran’s
expression. The diagnosis was “scar, right brow, well healed
and non-tender.”
II. Analysis
Initially, the Board notes that, in general, an allegation of
increased disability is sufficient to establish as well
grounded a claim seeking an increased rating. Proscelle v.
Derwinski, 2 Vet.App. 629 (1992). The Board is also
satisfied that all relevant facts have been properly
developed. No further assistance to the veteran is required
to comply with the duty to assist mandated by 38 U.S.C.A. §
5107 (West 1991).
The evaluation of service-connected disabilities is based on
the average impairment of earning capacity they produce, as
determined by considering current symptomatology in the light
of appropriate rating criteria. 38 U.S.C.A. § 1155 (West
1991). The severity of scars is determined, for purposes of
the case at hand, by application of the provisions of Parts 3
and 4 of the Code of Federal Regulations, and in particular
38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800, 7803 through
7805 of the VA’s Schedule for Rating Disabilities, 38 C.F.R.
Part 4 (1995). In particular, for disfiguring scars of the
head, face or neck, the assignment of a maximum 50 percent
schedular evaluation is authorized where there is complete or
exceptionally repugnant deformity of one side of the face or
marked or bilateral disfigurement. A 30 percent evaluation
is provided for severe disfigurement especially if there is a
marked and unsightly deformity of the eyelids, lips or
auricles. A 10 percent evaluation is provided for moderate
disfigurement. A noncompensable rating is provided for
slight disfigurement. However, when in addition to tissue
loss and cicatrization, there is marked discoloration, color
contrast, or the like, the 50 percent rating under Code 7800
may be increased to 80 percent, the 30 percent increased to
50 percent, and the 10 percent increased to 30 percent.
Also, for superficial and poorly nourished scars with
repeated ulceration, a 10 percent evaluation is provided
under 38 C.F.R. Part 4, DC 7803. For superficial scars that
are tender and painful on objective demonstration, a 10
percent evaluation is warranted under 38 C.F.R. Part 4, DC
7804. Other scars are rated on limitation of function of the
affected part. 38 C.F.R. Part 4, DC 7805. In every instance
where the schedule does not provide a zero percent evaluation
for a diagnostic code a zero percent evaluation shall be
assigned when the requirements for a compensable evaluation
are not met. 38 C.F.R. § 4.31 (1995).
The VA also has a duty to acknowledge and consider all
regulations that are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusion. Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). In addition, the entire
history of the veteran’s disability is to be considered. Id.
Generally speaking, in decisions on claims for veterans'
benefits, a veteran is entitled to the "benefit of the doubt"
when there is a proximate balance of positive and negative
evidence. 38 U.S.C.A. § 5107(b) (West 1991), Gilbert v.
Derwinski, 1 Vet.App. 49, 53 (1990). When the evidence
supports the claim or is in relative equipoise, the appellant
prevails. Gilbert, 1 Vet.App. at 56. Further, where the
"fair preponderance of the evidence" is against the claim,
the appellant loses and the benefit of the doubt rule has no
application. Id.
In the instant case, the preponderance of the evidence shows
that the veteran’s right forehead scar is not more than
slightly disfiguring, and is not ulcerated, tender or
painful, and does not interfere with the function of the part
affected. At the July 1993 VA examination the examiner
reported that the veteran’s scar was neither keloid or
disfiguring, could “hardly [be] seen,” and was “smooth.” He
further indicated that the scar did not adhere to underlying
bone, that the veteran was able to wrinkle his forehead
“without any difficulty,” and that the scar did not interfere
with the veteran’s expression. Based on the objective
findings, the examiner concluded that the veteran’s scar was
“well healed and non-tender.” These findings are highly
probative as to the veteran's current disability status,
especially in light of the absence of any other medical
evidence presented by the veteran showing complaints of or
treatment for his right forehead scar. See Francisco v.
Brown, 7 Vet.App. 55, 58 (1994). The Board notes, in
particular, that the veteran had no complaints of a painful,
tender, or disfiguring scar during a VA examination in June
1992, and no scar was noted by the examiner at that time.
Accordingly, in light of the objective findings during the
July 1993 VA examination, the preponderance of the evidence
demonstrates that the veteran’s right forehead scar is not
more than slightly disfiguring, ulcerated, tender or painful,
and does not interfere with any function. Although the 1993
examination did not include photographs, the examiner found
that the scar was not disfiguring and could hardly be seen.
Such findings, even absent photographs, will not support a
conclusion that any disfigurement is more than slight. In
addition, it is recognized that the veteran has reported that
the scar becomes painful when he wears a welding helmet.
However, the schedular requirements are clear: “tender and
painful” must be objectively demonstrated, and such has not
been objectively demonstrated in this case. Inasmuch as the
schedular criteria for an increased evaluation are not met,
the Board must conclude that the preponderance of the
evidence is against the veteran's claim for a compensable
evaluation for a right forehead scar. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 4.31, 4.118, DCs 7800, 7803 through
7805 (1995). Because the "fair preponderance of the
evidence" is against the claim, the benefit of the doubt rule
has no application. Gilbert, 1 Vet.App. at 56 (1990). And,
for the same reason, assignment of a compensable evaluation
under the provisions of 38 C.F.R. § 4.7 is not warranted.
In reaching the above decision, the Board has considered the
complete history of the disability in question as well as the
current clinical manifestations and the impact each
disability may have on the earning capacity of the veteran.
38 C.F.R. §§ 4.1, 4.2 (1995); Schafrath, 1 Vet.App. 589.
The veteran’s representative has argued that the July 1993 VA
examination was incomplete as there were no untouched
photographs accompanying the examination. In light of the
examiner’s objective observations, especially his findings
that the scar was not disfiguring, could “hardly [be] seen,”
and was “smooth,” the Board finds that obtaining photographs
is not warranted.
ORDER
Entitlement to an increased (compensable) evaluation for a
right forehead scar is denied.
REMAND
The veteran contends, in essence, that an evaluation in
excess of 10 percent is warranted for his service-connected
right hand and forearm laceration.
The veteran’s service medical records indicate that the
veteran severed the extensor tendons of the index, middle,
and ring fingers of the right hand in an in-service accident.
In a rating action dated in August 1984, the RO granted a
noncompensable evaluation under Diagnostic Code (DC) 7805
(scar) for a laceration of the veteran’s right forearm and
dorsum right hand. In August 1992 the RO assigned a 10
percent evaluation under DC 5215 (limitation of motion of the
wrist). This evaluation was continued pursuant to a
September 1993 Hearing Officer’s Decision. The Hearing
Officer noted that consideration was given to whether a
separate evaluation should be assigned to the loss of
function of the right index and middle fingers under DC 5223,
but that a recent VA examination revealed no true ankylosis
of the joints of those fingers and that the veteran was able
to bring those fingers within one quarter of an inch of the
hand when making a fist.
During a July 1993 VA examination the veteran reported that
“it is hard for him to get his fingers of the right hand,
primarily the index and middle fingers to the palm” unless he
dorsiflexed his wrist. The veteran did not complain of any
paresthesia or pain in his right hand and noted that he had
no problems grasping and using large objects with “big-hand
holds,” and that the “more crude or gross type of welding”
was no problem. Rather, the veteran reported that he was
“unable” to do the “more dexterous types of work as a welder”
requiring good coordination and dexterity of the right hand.
On objective examination the examiner reported, inter alia,
that flexion of the veteran’s index and middle fingers lacked
touching of the thenar eminence by one-quarter inch. The
examiner also noted that the veteran was able to flex fingers
to the thenar eminence if he also added plantar flexion of
the wrist.
The Schedule for Rating Disabilities provides a system for
rating the severity of ankylosis and limitation of motion of
single digits and combinations of digits. 38 C.F.R. § 4.71a,
DCs 5216 to 5223 (1995). Diagnostic Codes 5216 through 5219
are used to rate unfavorable ankylosis of the fingers, which
is ankylosis or limited motion that prevents flexion of the
tips of the fingers to within 2 inches of the median
transverse fold of the palm. 38 C.F.R. § 4.71a, DCs 5216
through 5219, Note (b) (1995) (emphasis added). Diagnostic
Codes 5220 through 5223 are used to rate favorable ankylosis
of the fingers which is ankylosis or limited motion that
permits flexion of the tips to within 2 inches of the
transverse fold of the palm (emphasis added). Limitation of
motion of less than 1 inch in either direction is not
considered disabling. 38 C.F.R. § 4.71a, DCs 5220 through
5223, Note (a) (1995).
In the instant case, the examination findings in July 1993
failed to consider any limitation of motion of the veteran’s
fingers to the transverse fold of his palm. As such, the
Board is unable to determine whether a separate evaluation
should be assigned according to the applicable rating
criteria set out in DC 5223. The examiner also failed to
address functional loss due to pain on use or due to flare-
ups under 38 C.F.R. § 4.40 (1995), as noted by the veteran’s
representative. See DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
In light of the above, it is the opinion of the Board that a
contemporaneous and thorough VA examination would be of
assistance to the Board in clarifying the nature of the
veteran’s service-connected right hand and forearm disorder,
and would be instructive with regard to the appropriate
disposition of the issue submitted for appellate
consideration. Littke v. Derwinski, 1 Vet.App. 90 (1990).
Accordingly, the issue of an increased evaluation for
residuals of a right hand and forearm laceration is REMANDED
for the following development:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers, VA or private, who
may possess additional records pertinent
to his claim for an increased evaluation
for disability of the right forearm and
hand since July 1993. After securing any
necessary authorization from the veteran,
the RO should attempt to obtain copies of
those treatment records identified by the
veteran.
2. The RO should arrange for a VA
examination by an appropriate specialist to
determine the nature and severity of the
veteran’s right hand and forearm disability.
All indicated testing should be conducted.
The claims folder and a copy of this remand
must be made available to the physician for
review in conjunction with the examination.
The examiner should record pertinent medical
complaints, symptoms, and clinical findings,
any instability and pain on use, and comment
on the functional limitations, if any, caused
by the right hand and forearm disability.
The examiner should specifically comment on
the degree of any limitation of motion (in
inches) found in any of the veteran’s right
hand fingers and finger joints. In this
regard, the examiner must indicate whether
the veteran is able to flex the tips of his
fingers to within two inches of the
transverse fold of the palm. If any
limitation of motion is found, the examiner
should specially report whether the
limitation of motion is less than one inch in
either direction, and indicate which joint or
joints of each finger are limited in motion.
A determination should also be made as to
active and passive range of motion of the
right wrist with an explanation as to what is
the normal range of motion. The claims
folder must be made available to the examiner
for review before the examination. It is
requested that the examiner provide explicit
responses to the following questions:
(a) Does the service-connected right hand
and forearm disability cause weakened
movement, excess fatigability, and
incoordination, and if so, can the examiner
comment on the severity of these
manifestations and on the ability of the
veteran to perform average employment in a
civil occupation? If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
(b) With respect to any subjective
complaints of pain, the examiner is requested
to specifically comment on whether pain is
visibly manifested on movement of the right
wrist, hand, and fingers; the presence and
degree of, or absence of, muscle atrophy
attributable to the service-connected right
hand and forearm disability; the presence or
absence of changes in condition of the skin
indicative of disuse due to the service-
connected right hand disability, or the
presence or absence of any other objective
manifestation that would demonstrate disuse
or functional impairment due to pain
attributable to the service-connected right
hand and forearm disability. In addition,
the examiner should offer opinions as to
whether there is adequate pathology present
to support the level of each of the veteran’s
complaints.
3. Following the above, the RO should
review the examination report and assure
that all requested information has been
provided. If not, the report should be
returned to the examiner for corrective
action. Thereafter, the case should be
reviewed by the RO. Review should
include consideration of a separate
compensable evaluation for any disorder
of the veteran’s right hand fingers, and
the provisions of 38 C.F.R. § 4.14 and
Esteban v. Brown, 6 Vet.App. 259 (1994).
All pertinent law, regulations, and
United States Court of Veterans Appeals
(Court) decisions should be considered,
including Schafrath v. Derwinski,
1 Vet.App. 589 (1991). Consideration
should be accorded to whether 38 C.F.R.
§§ 4.40, and 4.45 apply to each
evaluation, and if so, whether they
provide a basis for any change in the
award of compensation benefits.
If the veteran's claim remains in a denied status, he and his
representative should be provided with a supplemental
statement of the case, which includes all pertinent law and
regulations and a full discussion of action taken on the
veteran's claim, consistent with the Court's instruction in
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The applicable
response time should be allowed. The case should then be
returned to the Board for further appellate consideration.
By this action, the Board intimates no opinion, legal or
factual, as to the ultimate disposition warranted.
WILLIAM J. REDDY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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